Uncertainty Over DADT Lingers

WASHINGTON -- Given the uncertainty over the "Don't Ask, Don't Tell" law, Defense Secretary Robert M. Gates has directed that any discharges under the law be made by the service secretaries in consultation with the undersecretary of defense for personnel and readiness and the defense general counsel.

More uncertainty over the law looms, as the 9th Circuit Court of Appeals approved a stay of an injunction issued Oct. 12 on the law. The court's action means "Don't Ask, Don't Tell" is once again the law of the land after eight days of the injunction.

The court granted a stay of four days, said a senior defense official speaking on background. The temporary stay lasts through Oct. 25 to give the judges the time to look at the government's request.

The court may extend the stay through the length of the appeals process or allow the injunction -- which would allow openly gay and lesbian servicemembers to serve or openly gay and lesbian people to enlist -- to take effect.

The appeals process typically last 16 months in the 9th Circuit Court of Appeals, said the defense official. The court "briefing" schedule has the case on the books through March.

"With a case of this magnitude, it may be sooner," the official said. "Likely (there) could be a decision sometime in 2011, but I can't predict or control the court's timetable."

The legal uncertainty caused Clifford L. Stanley, the undersecretary of defense for personnel and readiness, to once again caution gay and lesbian servicemembers not to alter their personal conduct during this time.

In a memo issued Oct. 22, Mr. Stanley wrote that changing their status because of the injunction "may have adverse consequences for themselves or others depending upon the state of the law."

"I also emphasize again, that it remains the policy of the Department of Defense not to ask servicemembers or applicants about their sexual orientation, to treat all members with dignity and respect and to ensure maintenance of good order and discipline," he said.

In the meantime, Secretary Gates' guidance places the decision for discharges under the law in fewer and more senior hands.

"From this point forward and until further notice (service secretaries) are the ones who will be the separation authorities for their services," the senior official said. "This is not delegable."

The senior defense official said there is no guidance on recruiting in the secretary's memorandum to the service secretaries.

President Barack Obama and defense leaders want Congress to repeal "Don't Ask, Don't Tell." Changing the law overnight by court action makes for uncertainty within the force, the official said.

"Repeal of this statute that has been in place for more than 17 years should be done in an orderly way, informed by the recommendations ... (and) assessment of the DOD Working Group," the official said.